Revised Planning Principle for Sex Services Premises: Yao v Liverpool City Council [2017] NSWLEC 1167

18 August 2017

Facts in Yao v Liverpool City Council [2017] NSWLEC 1167

A revised planning principle has provided greater flexibility in the determination of development applications for Sex Services Premises where there are no relevant planning controls.

In Yao v Liverpool City Council [2017], Morris C rejected an application to modify the hours of operation for a brothel at 24 Railway Street, Liverpool.

The premises was within the B3 commercial core zone and the use of premises as “sex services premises” was prohibited however the use could continue due to existing use rights.¬† There were no planning controls for ‘sex service’ users in the zone and therefore, the Court and the experts applied the planning principle established in Martyn v Hornsby Shire Council [2004] NSWLEC 614.

Previous Planning Principle 

Roseth SC in Martyn v Hornsby Shire Council [2004] NSWLEC 614 established a planning principle at paragraph [18] in relation to a brothel application.

This principle explained where a brothel should not be located, such as in residential areas, where visible from schools or religious institutions. The principle also encouraged consideration of any adverse physical impacts, criminal behaviour or proximity to other brothels leading to a concentration of sex services premises that may be inconsistent with the character of the area.

Previous Planning Principle

In Yao v Liverpool City Council [2017], Morris C provided a revised planning principle at paragraph [25] as follows:

“When considering whether to grant consent for a development application for a “sex services premises” a consent authority should take into consideration such of the following matters as are relevant to the development application:

  1. The proximity to any sensitive land uses, such as, but not exclusively educational establishments, places of public worship, child care centres etc
  2. The proximity to any premises used for residential accommodation,
  3. Paths of travel for different members of the community near the premises,
  4. The hours of operation,
  5. Signage,
  6. Means of access to the premises,
  7. Safety of patrons and employees,
  8. Streetscape appearance,
  9. The existing or anticipated character of the area,
  10. Car parking and public transport access,
  11. Social impact, and
  12. Impacts of clustering multiple sex services premises”

Using these new principles especially considering that the brothel in this case is opposite a school and a thoroughfare for parents and children, Morris C rejected the appeal.

While both planning principles appear to be based on similar concerns such as protection of vulnerable people or groups as well as the preservation of the character and appearance of communities, they apply a different approach.

The principle in Martyn was more prescriptive while the revised planning principle requires consideration of all the same sensitive issues but allows the consent authority to determine the weight and impact of these considerations in determining applications relating to sex services premises.

The effect of this new planning principle will depend on how it is applied by the Court in the future but it appears to give rise to greater flexibility but, correspondingly, greater uncertainty.

This article was written by Jane Hewitt, Partner and Alex Epstein, Graduate

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